TALLAHASSEE — Floridians who want to amend the state Constitution through a citizen initiative and bypass an unresponsive state Legislature will now have their ability to finance the effort severely limited if a bill sent to the governor by the Florida House on Monday becomes law.
If signed by Gov. Ron DeSantis, SB 1890 would impose a $3,000 cap on contributions to any political committee sponsoring or opposing a constitutional amendment proposed by initiative, limiting the ability of proponents to finance the expensive signature-gathering operation needed to bring a proposed amendment before voters.
The $3,000 cap is the same limit set on contributions to individual legislative campaigns. Except legislators have given themselves a loophole: They allow themselves to accept unlimited amounts of campaign cash as long as it is given to their political committees. Under the bill, only after an idea obtains enough signatures to get onto the ballot does the cap disappear and affiliated political committees can collect unlimited contributions to help pass the idea.
The goal of the bill is “to stop millionaires” and billionaires from out of state from financing signature efforts in Florida, said Rep. Bobby Payne, the Palatka Republican who sponsored the House version of the bill.
Payne did not deny that the bill attempts to erect barriers to citizen initiatives but said that many of the constitutional amendments proposed by citizens would be better handled by statute, “which can more easily adjust to circumstances, knowledge improvement, demographic changes, policy preferences.”
“It’s our duty to make sure that only the best ideas from people from our state from Florida, are part of our guiding document,’' Payne told House colleagues Monday. “I ask for your favorable support to help Floridians and not the wealthy from outside of our state that influence our citizens initiative process, and therefore our Constitution.”
The House approved the measure 75-40 along party lines. The Senate last week also approved the bill, 23-17, along party lines with one Republican, Sen. Jeff Brandes of St. Petersburg opposed.
But the organizers of some of the most recent and successful ballot initiatives warn that the measure is undoubtedly unconstitutional, violating the First Amendment protections spelled out in the controversial Citizens United ruling by the U.S. Supreme Court that said corporate contributions are protected speech.
‘Muzzling the people’
“Citizens United deemed money like free speech,’' said John Morgan, the Orlando attorney who spent more than $6 million to get a 2020 ballot initiative to raise Florida’s minimum wage to $15 an hour and also bankrolled a 2016 amendment that legalized medical marijuana.
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“If I was advising the governor politically, I would tell him this could be an issue used against him in an election: muzzling the people and the purest form of democracy,’' he told the Herald/Times. “One thing we have seen this year is that democracy is under attack from all over. We will miss it when it’s gone.”
If the proposal had been law in 2018 when voters approved Amendment 3 to require statewide voter approval of gambling expansion, the proponents of the effort would have challenged it in court, said John Sowinski, president of No Casinos.
“It would have cost us money for lawyers, but not much time because it so blatantly violates the federal Constitution that a federal judge would have issued an injunction and ultimately would have struck the law, consistent with a mountain of case law including Citizens United,’' Sowinski said.
Glenn Burhans, who helped bring the unsuccessful All Voters Vote proposal to the 2020 ballot, which voters narrowly rejected, also warned of the impact of having the bill become law.
“The citizen initiative is a core expression of the people’s sovereignty, and has been the means for Floridians to effect popular change where the Legislature refuses to act,’' he said. “This bill likely kills the citizen initiative in Florida by imposing contribution limits that the politicians refuse to apply to their own political committees. To say that this bill will have a chilling effect on free speech is an understatement.”
Florida legislators have struggled with citizen initiatives for the last two decades, ever since backers of an amendment to prohibit the crating of pregnant pigs got the ban carved into the state Constitution.
Since then, several constitutional amendments have been approved by voters, including a ban on workplace smoking, a limit on class sizes in public schools, a requirement that every 4-year-old in Florida have access to pre-kindergarten classes, the legalization of medical marijuana, restoring felons’ voting rights, directing more money to land and water conservation, requiring statewide voter approval of gambling expansion and, most recently, raising Florida’s minimum wage.
Backers of those amendments poured millions of dollars into the efforts, many of them saying they were needed because Florida’s Republican-controlled Legislature wouldn’t budge on legislation sought by moderate and left-leaning advocates.
Secretive groups at work
But the citizen initiative process has also been gamed by private entities, including secretive groups whose donors are shielded by the state’s opaque financial contribution laws.
In 2019, a secretive organization that called itself “Keep Our Constitution Clean” spent more than $800,000 on paid petition gatherers over four months and worked to get an amendment on the November 2020 ballot that would require any future amendment to be passed twice by voters before becoming law.
But activists involved in other petition drives said the group had all the markings of being linked to the utility industry, which was opposing a proposed amendment also attempting to get enough signature to be placed on the ballot that would deregulate the state’s monopoly utilities.
In 2016, the utilities backed an amendment they claimed would have “protected” the right to solar and they spent more than $22 million gathering signatures and employed hardball tactics that effectively price out the independent solar-industry amendment. They succeeded in pricing out the rival amendment, but lost their initiative at the ballot box.
In 2020, the amendment to deregulate the monopoly utilities didn’t make to the ballot but the “Keep Our Constitution Clean” proposal did, and voters rejected it.
The proliferation of citizen initiatives, coupled with the state’s campaign finance laws that make it impossible to track the big money influence on campaigns, has long had many constitution watchers wary.
When the high court approved the language in the pregnant pigs amendment, then-Supreme Court Justice Barbara J. Pariente wrote in a concurring opinion: “I cannot help but observe that the issue of whether pregnant pigs should be singled out for special protection is simply not a subject appropriate for inclusion in our state Constitution.”
Legislators opposed to the measure said that if legislative leaders were determined to fix those abuses, they would have imposed more transparency on third-party and secretive groups but instead chose erect barriers to citizens.
“I do think that there’s a problem with money in politics,’' said Rep. Anna Eskamani, an Orlando Democrat, during debate on the bill on Monday. “I do think we can do a better job in fighting for transparency among political committees. But this bill doesn’t do that.”
“This is an attempt to limit core political speech,’' said Rep. Joe Geller, an Aventura Democrat. “I don’t want to have to say it again. I told you so. This is another unconstitutional measure, it will be struck down after great expense. How about we save the people’s money and our time, just this once?”
If signed by DeSantis, SB 1890 must overcome legal rulings by the U.S. Supreme Court, which has struck down caps on contributions to committees supporting or opposing an issue on the ballot. And Article 1 of the Florida Constitution says that all political power resides in the people, not the governor or Legislature.
Mary Ellen Klas can be reached at email@example.com and @MaryEllenKlas